State of New South Wales v BG (a pseudonym) (Final)

1. [1]

   The defendant, BG, [1] is a 61-year-old man who has been convicted of a series of sexual offences against three female children aged 9, 10 to 11, and 15. The offences were committed between 1998 and 2004.

2. [2]

   The plaintiff, the State of New South Wales, has brought proceedings against the defendant pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) by way of an amended summons filed on 4 October 2022. The plaintiff seeks final relief in the nature of a five-year extended supervision order (“ESO”) subject to certain conditions. The making of the order is opposed by the defendant. Should the order be made, the defendant contests the duration of the order and the nature of some of the conditions sought by the plaintiff.

3. [3]

   For the reasons which follow, I am satisfied that an ESO of three years should be made subject to conditions. The conditions are set out at the conclusion of these reasons.

Procedural History

1. [4]

   On 9 August 2022 following a preliminary hearing, Chen J made orders pursuant to ss10A and 10C of the Act for the defendant to be subject to an interim supervision order (“ISO”) commencing on 12 August 2022 for a period of 28 days. [2] The ISO was renewed on several occasions and is due to expire on 11 November 2022. [3] The ISO was also subject to certain conditions pursuant to s11 of the Act.

2. [5]

   Chen J also made orders for the appointment of two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish those expert reports to the Court to assist in determining whether or not an ESO should be made and if so, the nature of it. [4]

3. [6]

   The final hearing of the plaintiff’s application came before me on 24 October 2022. Ms New of counsel appeared for the plaintiff and Mr Broadbent and Ms Richards of counsel appeared for the defendant.

4. [7]

   The following documentary material was tendered or read on behalf of the plaintiff at the hearing:

   1. (1)

      Exhibit A: Affidavit of Brett Thomson sworn 24 February 2022 with the one volume exhibit marked “BT-1” as referred to in the affidavit.

   2. (2)

      Exhibit B: Affidavit of Brett Thomson sworn 1 July 2022;

   3. (3)

      Exhibit C: Affidavit of Brett Thomson sworn 30 September 2022;

   4. (4)

      Exhibit D: Affidavit of Angela Marlis Rybak affirmed 23 August 2022;

   5. (5)

      Exhibit E: Affidavit of Kelli Grabham affirmed 4 October 2022;

   6. (6)

      Exhibit F: Expert report of Dr Michael Davis dated 23 September 2022;

   7. (7)

      Exhibit G: Expert report of Dr Andrew Ellis dated 26 September 2022; and

   8. (8)

      Exhibit H: Victim statement dated 13 October 2022.

5. [8]

   The following documentary material was tendered or read on behalf of the defendant at the hearing:

   1. (1)

      Exhibit 1: Affidavit of Dominic Gleeson sworn 18 July 2022 with the exhibit marked “DG-1” as referred to in the affidavit;

   2. (2)

      Exhibit 2: Affidavit of Dominic Gleeson sworn 18 October 2022; and

   3. (3)

      Exhibit 3: Affidavit of BG affirmed 18 October 2022.

6. [9]

   At the hearing of the matter, the two experts Dr Michael Davis and Dr Andrew Ellis gave oral evidence.

7. [10]

   Helpful written submissions were provided by Ms New and Mr Broadbent (with Ms Richards) and counsel spoke to those written submissions at the conclusion of the hearing.

Principal Issues for Determination

1. [11]

   The principal issues for determination by the Court are as follows:

   1. (1)

      Whether an ESO should be made;

   2. (2)

      If so, the duration of the order; and

   3. (3)

      If an ESO is made, the conditions which the Court considers appropriate as part of the ESO.

The Statutory Scheme

1. [12]

   As set out in s 3 of the Act, the primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders, so as to ensure the safety and the protection of the community. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.

2. [13]

   The Act is designed to address the “almost intractable problem” of how “the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release”: State of New South Wales v Heath (a pseudonym) (Final) [2022] NSWSC 365 at [11]; State of New South Wales v Donovan [2015] NSWSC 1254 at [3]. The objects of the Act are protective, not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]; Kamm v State of NSW (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [147].

3. [14]

   Section 5B of the Act specifies the circumstances in which the Court may make an ESO (often referred to as the “threshold requirements”):

4. [15]

   “Serious offence” is defined in s 4 of the Act as a serious sex offence or a serious violence offence. In this matter, the relevant type of serious offence is a serious sex offence.

5. [16]

   Section 5D of the Act provides that the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.

6. [17]

   The meaning of “unacceptable risk” is not defined in the Act and its meaning was considered by Beazley P of the Court of Appeal in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]–[51] (“Lynn”):

7. [18]

   In Lynn, Basten JA stated at [126]:

8. [19]

   The “unacceptable risk” inquiry is not discretionary, but it does involve an evaluative balancing exercise to be undertaken in the overall context of the primary object of the Act, that being to ensure the safety and protection of the community: s 3(1) of the Act. Importantly, unacceptability of risk involves consideration of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate: New South Wales v Simcock [2016] NSWSC 1805 at [71] (Wilson J); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J).

9. [20]

   An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: New South Wales v Kamm (Final) [2016] NSWSC 1 at [41]-[43] (Harrison J); State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73] (Dhanji J).

10. [21]

    The impact an ESO may have on the defendant’s liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. That factor, however, may be relevant to the exercise of the Court’s discretion pursuant to s 9 of the Act. [6]

11. [22]

    In determining whether or not to make an ESO, s 9(2) of the Act provides that the safety of the community must be the paramount consideration of the Court.

12. [23]

    Section 9(3) of the Act sets out a list of factors which the Court “must also have regard to…in addition to any other matter it considers relevant” in determining whether or not to make an ESO. These factors go to the evaluative determination required by s 5B(d) and also the exercise of the discretion in s 9 of the Act.

Factual Background

1. [24]

   The defendant was convicted for three separate instances of offending:

   1. (1)

      In October 2002, he was convicted of one count of aggravated indecent assault of a person under 16 years contrary to s 61M(1) of the Crimes Act 1900 (NSW) in relation to conduct in November 2001. The offending involved his 15-year-old daughter. He was sentenced to a period of imprisonment of one year which was suspended pursuant to the now repealed s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the 2001 Offending”).

   2. (2)

      In November 2005, he was convicted of one count of sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act in relation to conduct committed on 8 February 2004. The victim was a 9-year-old girl. He was sentenced to a period of imprisonment of five years and four months, with a non-parole period of four years (“2004 Offending”)

   3. (3)

      In November 2013, he was convicted of one count of aggravated indecent assault of a person under 16 years and three counts of aggravated sexual assault of a person under 16 years contrary to ss 61M(1) and 61J of the Crimes Act respectively in relation to conduct from January 1998 to July 1999. The victim was his daughter’s friend, aged 10 and 11 years at the time. He was sentenced to a period of imprisonment of nine years with a non-parole period of six years and nine months, expiring on 12 August 2022 (“the Index Offending”). While this sentence was last in time, these offences pre-dated all of the defendant’s other sexual offences.

2. [25]

   Further background in relation to the offending and the defendant’s background more generally was set out conveniently in the preliminary judgment of Chen J at [52]-[73] as follows: [7]

Threshold requirements

1. [26]

   There are four threshold requirements set out in s 5B of the Act. The defendant accepts that the first three threshold requirements set out under ss 5B(a)-(c) are satisfied. I find that they are satisfied on the following basis.

2. [27]

   The defendant is an “offender” (as defined in s 4A) and has served a sentence of imprisonment by way of actual custody for a “serious offence” (as defined in s 4A). The index offence committed by the defendant (which is the offence triggering the operation of s 5B(a)) falls under the definition of a “serious offence” by virtue of it being a “serious sex offence” (s 4). A “serious sex offence” means “an offence under Division 10 of Part 3 of the Crimes Act 1900 where in the case of an offence against … a child, the offence is punishable by imprisonment for 7 years or more…” (s 5(1)(a)(i) of the Act).

3. [28]

   Further, the defendant is a “supervised offender” within the meaning of s 5I (as required by s 5B(b)) and an application for an order has been made in accordance with s 5I (as required by s 5B(c)).

4. [29]

   However, the defendant opposes the making of an ESO on the basis that I should not be satisfied of the fourth threshold requirement – that is, the requirement set out in s 5B(d):

5. [30]

   Aside from the orders sought by the plaintiff for a pseudonym and restricted access to the court file, the defendant submits that the Summons should be otherwise dismissed. Accordingly, the first contested question for resolution is the fourth threshold requirement.

First matter for determination: Should an ESO be made?

1. [31]

   The risk in question, as contended for by the plaintiff, and which I accept is an appropriate characterisation of the risk, is a risk of the defendant committing another serious sex offence involving a female child. As noted above, this is an evaluative task. My satisfaction under s 5B(d) is a precondition to the exercise of the power in s 9 of the Act.

2. [32]

   Section 9(1) provides that I may determine the application either by making an ESO or by dismissing the application. Section 9(2) provides that in determining whether or not to make an ESO, the paramount consideration must be the safety of the community. The exercise under s 9 requires the exercise of a discretionary judgment, both as to whether such an order is to be made and as to the nature of the supervision. A non-exhaustive list of matters I must consider are found in s 9(3). I may also have regard to “any other matter [I] consider relevant”.

3. [33]

   To the extent that material of the type referred to in s 9(3) is to be considered, that material is to be found in the material tendered by the plaintiff and by the defendant, and also in the oral evidence adduced from the two court-appointed experts at the hearing before me. I now turn to those matters.

4. [34]

   Dr Michael Davis is a Consultant Forensic Clinical Psychologist who was appointed pursuant to s 7 of the Act.

5. [35]

   Dr Davis examined the defendant by way of video-link (due to COVID-19 exigencies) for over 5 hours. Psychological testing and the completion of relevant diagnostic and risk assessment tools were undertaken during this examination. Dr Davis was also provided with a range of detailed documents including previous reports that have been tendered before me.

6. [36]

   The defendant claimed to Dr Davis that he is no longer interested in sex and stated that he wants “to go dirt-bike riding and pool playing … I’m sure if I had sex I’d enjoy it, but it’s not what I’m looking for.”

7. [37]

   When asked about why he thought it was illegal for adults to engage in sexual activity with children, the defendant replied:

8. [38]

   When asked what he thinks of men who molest children, the defendant replied, “it’s wrong, it’s bad”.

9. [39]

   In addition to setting out the details of the charged sexual offending in his report, Dr Davis also noted some uncharged acts reported by the defendant’s daughter (the victim of the 2001 offending) who stated that the defendant had sexually touched and digitally penetrated her when she was eight or nine years of age. She also alleged that when her younger sister was seven or eight years-old, she asked their father questions about her vagina. The defendant reportedly pulled her pants down and “told her to spread her legs and she did it and he was touching her and pointing out and telling her what the parts were as he touched her … after he finished he just [pulled her] pants back up”.

10. [40]

    Dr Davis also noted that the defendant was initially charged with the offences, including the index offences, in September 2000 but that they were withdrawn in March 2001. The charges arising from that offending recommenced in September 2012.

11. [41]

    Dr Davis reported on the defendant’s absence of any social circle, and his lack of hobbies, noting that the defendant stated he was not allowed any.

12. [42]

    Dr Davis also noted some potential indications of alcohol misuse, a history of anti-social behaviour and a poor sense of identity. Dr Davis noted that a counsellor in 2008 described the defendant as being “dependent on alcohol”.

13. [43]

    The defendant’s results on the psychological testing included a score of “reasonably elevated” in an impression management scale, which suggested that further self-report testing “may be invalid”, and “may potentially under-represent the extent and degree of any difficulties, especially in regard to social and moral matters”. His Personal Assessment Inventory testing suggested “prominent difficulties with paranoia and suspiciousness, as well as some physical health difficulties, stress in the environment, and a dearth of social supports.

14. [44]

    Dr Davis assessed the defendant against the Revised Screening Scale for Pedophilic Interests (SSPI-2). Whilst noting the defendant’s score of three on the SSPI-2 was somewhat higher than the average score amongst child sex offenders in the sample on which the instrument was validated, it was lower than the score generally considered to indicate the presence of preferential paedophilic sexual interest. Dr Davis stated:

15. [45]

    Dr Davis also assessed the defendant against the Screening Scale of Pedophilic Crime Scene Behavoiur (SSPC). Whilst not as extensively validated as the SSPI-2, it has been validated in studies involving German, Canadian and American offenders. Again, the defendant’s results suggested that “while he had previously seen pre-pubescent females as a viable sexual alternative, this is perhaps unlikely to be a preferential sexual interest”.

16. [46]

    Dr Davis concluded that the defendant does not meet formal criteria for a major mental illness, but that the combination of various factors meets the criteria for a diagnosis of Mixed Personality Disorder (with narcissistic and paranoid features” with a moderate level of impairment. The defendant would have also previously met the criteria for Alcohol Use Disorder. Dr Davis stated:

17. [47]

    In observing that the scholarly literature indicated that child molestation offenders can be usefully conceptualised on a continuum from the situational and impulsive to the preferential and compulsive, Dr Davis placed the offender “towards the middle of this continuum, but more towards the situational end, and is best explained by a combination of regressed and morally indiscriminate pattern of behaviour”.

18. [48]

    In assessing the defendant’s risk of sexual recidivism, Dr Davis utilised firstly the Hare Psychopathy Checklist-Revised (PCL-R). Dr Davis observed that generally speaking, higher scores on the PCL-R are suggestive of an increased risk of re-offending. The defendant’s total score was in the moderate range, comparable to the average for North American offenders. Given other relevant risk factors, the defendant was also assessed against an actuarial scheme (Static-99/Static-99R) and a set of structured clinical guidelines such as the Risk for Sexual Violence Protocol (RSVP).

19. [49]

    The Static-99 is a brief actuarial (that is, mechanical) instrument designed to assist in the assessment of sexual recidivism risk among adult males who have already been charged with at least one sexual offence against a child or non-consenting adult. It is based upon static risk factors found to be related to recidivism and provides explicit rules for combining risk factors.

20. [50]

    Using this instrument, Dr Davis found that the defendant “is considered to fall in the moderate-high risk category relative to other male sexual offenders with a score of four”. In the studies on which this measure was developed, the percentage of offenders with scores of four who went on to be convicted of sexually re-offending ranged from 26% over 5 years, to 31% over 10 years, to 36% over 15 years.

21. [51]

    Dr Davis noted the historical nature of his most recent conviction, and that the defendant is now 61 years-old:

22. [52]

    Dr Davis also noted the potential protective effects of lengthy periods in the community offence-free, although he noted the unknown effect of the offender’s term of 9 years in prison for historical offences.

23. [53]

    The Risk for Sexual Violence Protocol (RSVP) was also administered and it considered both static and dynamic risk factors. Dr Davis concluded that the defendant had a range of difficulties across all five domains of risk factors, although only the social adjustment domain was somewhat higher than average (the other scores were comparable to average). Certain qualifications were noted by Dr Davis given the defendant had just served nine years in prison. Importantly, he stated as follows:

24. [54]

    Dr Davis was of the view that the most likely scenario for future sexual offending, should it occur, is a repeat scenario in which the defendant sexually touches, and perhaps digitally penetrates, a pre-pubescent, pubescent, or adolescent female to whom he has been granted unrestricted access. Given the earliest offending which involved penile-vaginal penetration has not been repeated in subsequent offences, this would be less likely according to Dr Davis. Dr Davis also noted that given the defendant was reportedly intoxicated with alcohol during his offending against two of the three victims, any future offending may, but not necessarily, also involve alcohol misuse. Given that the defendant is not presently consuming alcohol and has not done so for nine years (having been in custody), it is unclear in Dr Davis’ opinion if the defendant will return to problematic alcohol use in the future.

25. [55]

    The defendant engaged with the interview by answering many of the questions and undergoing the testing. However, Dr Davis noted that he had a “shallow and restricted range of emotional expression” during their interview and refused to discuss his prior sexual offending. Dr Davis significantly reported the following:

26. [56]

    As such, in the defendant’s mental status examination, Dr Davis stated that it was difficult to determine insight as the defendant refused to discuss his previous sexual offending.

27. [57]

    When questioned as to whether he was arguably “shooting himself in the foot” by refusing to discuss his previous sexual offending, he replied “I’m aware…the lies that have been written about me in reports…that’s taboo, just that line in the sand that I’ve drawn”.

28. [58]

    Dr Davis’ overall opinion was that the defendant poses a moderate risk for sexual recidivism. This is a risk that is comparable to that of the average sexual offender. Accordingly, using the best available Australian data, the defendant’s moderate risk for sexual recidivism placed him in a group with a reconviction rate of 13 percent over 5 years, 17 percent over 10 years and 21 percent over 15 years. However, as Dr Davis stressed, it is important to note that there is no published research that explicitly addresses the recidivism rates for “serious sex offences”, as opposed to “sex offences” simpliciter. Accordingly, the rates of recidivism for a “serious sex offence” will be a sub-set of those figures. Dr Davis went on to observe that more than two thirds of the sample were sexual offenders that had victimised children, so the rates may not be too dissimilar, but that is “admittedly speculative”.

29. [59]

    Dr Davis opined that if placed on an ESO, the defendant’s level of moderate risk for sexual recidivism and a serious sex offence will not necessarily be reduced, but that:

30. [60]

    In relation to the utility of certain proposed conditions, Dr Davis expressed the view that the conditions prohibiting the defendant from attending sexually explicit entertainment utilising the services of sex workers, or watching legal adult pornography, are not going to have any appreciable effect on his risk for sexual recidivism. Dr Davis opined that anything which focused the defendant’s sexual interests towards adult females can be seen as cautiously positive.

31. [61]

    Dr Davis also recommended the defendant be referred to a pain clinic to minimise the risk of using alcohol to address his physical pain issues. Dr Davis also noted that social isolation was a potentially concerning risk factor and he would benefit enormously from any management strategies that aimed to increase his social circle and provide more meaningful leisure activities, such as playing pool and dirt-bike riding. Employment of some form would also be efficacious.

32. [62]

    As to the duration of the ESO, Dr Davis noted that he has generally found that a period of two-to-three years is enough time for an offender to demonstrate stability in the community.

33. [63]

    Dr Andrew Ellis is a Forensic Psychiatrist appointed pursuant to s 7 of the Act.

34. [64]

    Dr Ellis examined the defendant in a clinical interview of two hours and he was provided with a range of detailed documents about the defendant including previous reports that have been tendered before me.

35. [65]

    Dr Ellis noted that most of the defendant’s family have “disowned” him, and that he avoids his family to keep them out of the situation. Dr Ellis reported that the defendant’s relationship of 14 years with the mother of his four children ended when she asked the defendant to move out after she formed a relationship with another man. He had met her when he was 21.

36. [66]

    The defendant told Dr Ellis that he would enjoy going fishing, riding dirt bikes or playing billiards.

37. [67]

    Under a heading titled “Lay Observations”, Dr Ellis recorded that a witness noted in 2001 that the defendant “drank heavily, a bottle of spirits each night.” In 2004, a witness noted that the defendant was “drinking regularly, particularly scotch” and that he was playing with children in a driveway and calling himself “Ronald McDonald”.

38. [68]

    In relation to the index offending, Dr Ellis noted that they occurred in the homes of the defendant’s family members, and that the defendant was separated from his wife at the time. The 2001 offending occurred when the defendant had no fixed address and was not working. He had been out at a tavern with his daughter and her boyfriend playing pool that night before he was later interrupted in the offending by his daughter’s boyfriend. The 2004 offending was committed after the defendant had completed community supervision by way of a bond for the 2001 offending.

39. [69]

    Dr Ellis reported that the defendant “specifically denied any sexual attraction to children or adolescents”. The defendant further denied:

40. [70]

    Dr Ellis noted that his diagnosis was based on collateral information rather than self-report as the defendant refused to discuss his experiences. Dr Ellis stated that the diagnosis of primary concern would be a paraphilic disorder, paedophilia. That diagnosis is based on the adjudicated behaviour with clearly underage female children over a period of 6 years. Importantly, Dr Ellis states “Paedophilia is a chronic relapsing condition”.

41. [71]

    Dr Ellis also opined that hebephilia (attraction to youthful, but post pubescent) females may also be present given the age of his daughter at the time of the offence. Dr Ellis noted there is evidence of physiological arousal for the offences. The disorder is characterised by attraction to females and is non-exclusive in that he reports attraction to adult females. Dr Ellis noted the other information from witnesses which suggests an interest in the company of children.

42. [72]

    As to the issue of alcohol, Dr Ellis opines that he may meet the criteria for an alcohol use disorder (presently under remission as he is under supervision), noting that despite self-reporting modest alcohol use, other informants and prior assessments note heavy use of alcohol, with some related to the sexual offences. His criminal history also reflects alcohol use.

43. [73]

    Dr Ellis also considered that the defendant suffers from a personality disorder with prominent paranoid features. Dr Ellis observed that whilst the defendant was not diagnosed with antisocial personality disorder, he has however displayed poor interpersonal function across his adult years. Dr Ellis stated that he will require ongoing support from his treatment providers to moderate his interpersonal function.

44. [74]

    Dr Ellis’ report then went on to discuss the defendant’s risk of a commission of a further serious sexual offence, noting that actuarial measures such as the STATIC 99R do not determine whether an individual person will reoffend with a sexual or other offence. Rather, such a measure allocates individuals with particular characteristics to risk groups, and those groups have been identified as possessing greater or lesser numbers of persons with the group as reoffending. Dr Ellis noted that the difficulty with the use of this sort of instrument is that it does not discriminate between those in a particular risk group who do reoffend and those who do not. Further, it does not discriminate by type of offending, and (as also noted by Dr Davis), would include reoffending with sexual offences that would not meet the criteria of a serious sexual offence defined in legislation.

45. [75]

    Dr Ellis also stated that clinical considerations in regard to risk of reoffending include deviant sexual arousal, personality disorder, substance use and treatment setting. He notes that these can be applied to a structured professional judgement instrument to determine areas of propensity for future sexual aggression, such as the RSVP, and referred to that tool in his evaluation.

46. [76]

    Dr Ellis opined that sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence, and that the defendant’s offence history indicates this pattern of arousal given the age of the three female child victims. Dr Ellis stated:

47. [77]

    In noting the defendant’s lack of participation to date in cognitive behavioural programs for sexual offending, Dr Ellis stated that the evidence for completing such programs and reducing sex offence risk is limited. He also stated that there is less evidence for “Denier’s programs” modifying risk in a meaningful manner. Dr Ellis observed, however, that “there is some evidence that those who refuse to participate are at higher baseline risk than those that agree to the programs”.

48. [78]

    As to substance abuse, Dr Ellis noted that whilst not strongly associated with sexual offending, “in this case alcohol use may have served to increase risk taking and increase paraphilic arousal”.

49. [79]

    Dr Ellis also opined that sexual re-offence in persons over the age of 60 is “uncommon”. Importantly, Dr Ellis went on to observe that:

50. [80]

    The defendant’s time in the community between 2009 and 2012 without offending was noted by Dr Ellis, who stated “This indicates some capacity to desist from offending”, although he also noted that the defendant was under the child protection register (CPR) supervision for this time. Dr Ellis further stated:

51. [81]

    Dr Ellis stated that a consideration of the type of possible sexual offence should be considered in an estimation of risk and noted that:

52. [82]

    Dr Ellis concluded:

53. [83]

    As to treatment, Dr Ellis outlined his recommendations including assessment and therapy for sexual offending, substance use and personality function. He stated that if a private provider is engaged by the defendant, communication should occur between them and his CSNSW supervisor to coordinate care. Dr Ellis also provided that treatment via a regular general practitioner should occur to manage the defendant’s chronic pain as well as any other likely age-related health conditions.

54. [84]

    Dr Ellis reported that at the outset of their interview, the defendant indicated that “he would not discuss anything related to past convictions, charges or allegations”, citing a general distrust of the system and mental health practitioners. The defendant told Dr Ellis that he thought anything he said about the topic could be misconstrued.

55. [85]

    In the mental state examination, Dr Ellis again noted that the defendant refused to discuss his previous charges and convictions in any way and did not change his position when given the opportunity to do so.

56. [86]

    Dr Ellis reported that the defendant was of the view that he was being “set up to fail” with the proposed orders under the ESO.

57. [87]

    Dr Ellis noted that the defendant had no contact with his children, was monitored by a global positioning system ankle bracelet and is presently subject to a schedule of movements pursuant to the ISO after having been in custody for 9 years (in protection) and having received no visitors.

58. [88]

    In relation to an order for an ESO, Dr Ellis opined:

59. [89]

    Dr Ellis further stated:

60. [90]

    Dr Davis and Dr Ellis were called to give evidence before the Court on 24 October 2022. In the course of their evidence, certain matters from the expert reports were emphasised. The following matters of note were clarified, modified or otherwise discussed:

    1. (1)

       Both Drs Davis and Ellis noted the Risk Assessment report from Ms Sapula, [11] noting that she was not able to interview the defendant, but that she did a good job with the materials she had before her;

    2. (2)

       Dr Ellis noted that the presence of deception in some of the answers of the defendant would go to the form of supervision that might be required for someone, taking into account a capacity for not being authentic in responses to questions;

    3. (3)

       Both Drs Davis and Ellis were of the opinion that denial of offending was ultimately theoretically neutral in relation to risk assessment in a general sense, but that in this instance, where denial led in turn to refusal to take up treatment, that meant that any benefits from treatment, including a reduction in the recidivism rate, were unavailable;

    4. (4)

       Both doctors agreed that individual therapy rather than group therapy was the best option;

    5. (5)

       In relation to the 2004 offending, both doctors were of the view that there was either a predatory element to it, or the defendant had engineered a situation to be alone with the child. Dr Davis noted there was a degree of psychological coercion involved in all the offences.

    6. (6)

       Both doctors were of the view that the evidence from the eldest daughter alleging additional criminal conduct of digital penetration when she was eight and nine years old did not change their assessment of risk, given the similar nature of the proven intra-familial allegations.

    7. (7)

       Dr Davis agreed that the risk assessment literature indicated that if one has served a sentence and then reoffends (as the defendant did in relation to the 2002 suspended sentence, followed by the 2004 offending), it was considered far more of a risk than offending over a long period of time and being caught for all of the offences in one go.

    8. (8)

       As to the advancing age of the defendant, Dr Ellis was less convinced that his age and the concomitant likely diminution of sex drive was clear in this case. Dr Ellis stated “I think this kind of area contains more than simply sex drive … I think it is something that needs to be monitored, given the past history, but … it is an area that is difficult to assess now.”

    9. (9)

       The doctors essentially agreed that the defendant’s personality disorder, involving narcissism and lack of empathy, was a risk factor for offending.

    10. (10)

        The difference between Dr Ellis and Dr Davis as to a diagnosis of paedophilia was discussed. Dr Davis stated that while the defendant technically met the criteria for paedophilic disorder under the DSM-5-TR, there was nothing to suggest that the defendant had such a preference “over and above the normophilic sexual interests”. Dr Davis stated that to make something a paraphilic disorder, the deviant interest had to be greater than or equal to normophilic sexual interests. Dr Ellis was of the view, however, that a paedophilia diagnosis was indicated, based on the defendant’s adjudicated behaviour, including sexual arousal, and the age of two of the victims being pre-pubescent, which was more than “just indiscriminate taking of sexual liberties with someone who's nearby because the body habitus of those children is quite significantly different to what most adult men would be, adult heterosexual men would be sexually aroused to”. Dr Ellis also pointed to the length of time over which the offending took place. Ultimately Dr Ellis stated that his conceptualisation was not markedly different to that of Dr Davis, given on any view that the defendant was not an exclusive paedophile, but that the difference was ultimately one of degree.

    11. (11)

        Both doctors agreed that other motivations such as power and anger, together with evidence of sexual attraction towards children were a compelling part of their risk assessment.

    12. (12)

        Both doctors agreed in oral evidence that the score using the STATIC 99 was 4, and the STATIC 99R was 3.

61. [91]

    Dr Davis noted the following observation made by Mr John Taylor, a clinical forensic psychologist, based on the results of the defendant from various psychological tests in a report dated 6 October 2005:

62. [92]

    Dr Davis also noted the following observation made by a psychiatrist, Dr Olav Nielssen, in a report dated 31 October 2013 where:

63. [93]

    A risk assessment report was prepared by Ms Katarzyna Sapula, a Senior Psychologist at the Serious Offenders Assessment Unit, at the request of the Commissioner of Corrective Services New South Wales. The report was dated 30 November 2021.

64. [94]

    After the defendant was informed of the purpose of Ms Sapula’s assessment, the defendant declined to be interviewed. Accordingly, the report was prepared only on the documentary information supplied and available to Ms Sapula.

65. [95]

    Ms Sapula assessed the defendant against the STABLE-2007 factors and the STATIC-99R factors. Ms Sapula concluded that together, they generated a “composite assessment of risk/needs” and that after combining the static and dynamic risk factors, the defendant was in the “Well Above Average” risk category and suggested the defendant required “a High level of intervention/supervision”. The STATIC-99R score also placed the defendant in the “Above Average” risk range and that the dynamic risk assessment revealed a “High density of criminogenic needs relative to other male sexual offenders”.

66. [96]

    In the course of her report, Ms Sapula also noted that an offender’s acknowledgement of risk and identification or relevant risk factors can be a protective factor (in that it reduces the risk of re-offending) as such insight allows for the individual to minimise the likely emergence of risk factors in the future. However, in this instance, Ms Sapula opined the following:

67. [97]

    Ms Sapula also observed that the defendant’s convictions for driving while under the influence of alcohol and other collateral information suggested that he tended to minimise his alcohol consumption. She stated that:

68. [98]

    Ms Sapula concluded that given the defendant’s lack of insight into his risk factors, the absence of any necessary management strategies along with the defendant’s proven propensity to offend against children, it is “possible that [BG] could commit an offence that would approach the threshold of a “serious sexual offence””. Ms Sapula opined that should an ESO be ordered, the defendant should be subject to “intense supervision, strict monitoring and case management by CSNSW”.

69. [99]

    Ms Sapula also noted that if the defendant resided in the metropolitan area and was subject to an ESO, he can be referred for Individual Risk Management Intervention sessions. She further noted, however, that the effectiveness of the sessions remained questionable given the defendant’s consistency in rejecting all intervention over the years, and his apparent lack of recognition of any difficulties in his life that he may have some influence over.

70. [100]

    A risk management report was prepared by Mr Jason Saad, a Community Correction Officer, on behalf of the Commissioner of Correct Services NSW. The report was dated 19 December 2021.

71. [101]

    In preparing the risk management report, Mr Saad had access to the Risk Assessment Report prepared by Ms Sapula, a video interview with the defendant, police facts, criminal history, and Corrective Services NSW records.

72. [102]

    Mr Saad reported that the defendant fell in the “medium to high risk level for general re-offending” when an assessment was undertaken using the Level of Service Inventory – Revised (LSI-R) on 2 February 2021. Mr Saad also noted that in the one video interview that the defendant participated in, the defendant presented as “extremely heightened and aggressive” with “unaddressed mental health issues”.

73. [103]

    Mr Saad concluded his report by recommending certain conditions should an ESO be granted.

74. [104]

    The evidence shows that whilst in custody the defendant has been singularly reluctant, indeed antagonistic towards, participating in sex offender programs or therapy which would address his offending, with perhaps one exception.

75. [105]

    Mr Saad noted that between 2007 and April 2021, the defendant was offered placements to the CSNSW Deniers Program. Mr Saad reported that on each occasion, the defendant either “refused to consent to partake in the program, or withdrew his placement due to perceived concerns that he may be targeted by other inmates”. It appears that the defendant may have been prepared to engage in the Denier’s program in 2019, but problems surrounding a non-association order ultimately prevented him from doing so.

76. [106]

    The defendant’s “largely non-involvement” in previous treatment programs was recorded by Dr Davis and detailed in the Risk Assessment Report by Ms Sapula. It was reported that he had refused to participate in treatment as it denied the prisoner privacy and exposed them to danger in prison.

77. [107]

    The defendant also participated in RUSH (Real Understanding of Self Help) in early 2021, a group program for personality problems. His engagement was described as fluctuating; at times being more cooperative than at other times. When he was asked about this program he stated that it was all “psycho-babble and bullshit”, and that he had learned nothing. Dr Ellis recorded that the defendant’s experience of RUSH was that it lacked confidentiality and he became the centre of attention in the prison yard as a result of his attendance.

78. [108]

    The defendant also refused participation in the SMART and Anger Management courses as he was assessed as unsuited due to being “bad tempered” and “resentful” and it was considered that he would be too disruptive in a group setting.

79. [109]

    The defendant completed the EQUIPS Foundation program in custody between 22 July 2019 and 13 September 2019 and was described as having adequate comprehension of the program.

80. [110]

    Additionally, the defendant was referred to individual risk management intervention sessions with the aim of increasing his motivation for intervention. Mr Saad reported that while the defendant participated in three sessions, his engagement was “not meaningful” and “problematic” as he “remained fixated on his many grievances”.

81. [111]

    The defendant also withheld consent to being interviewed for his recent risk assessment report and claimed to Dr Davis that he didn’t want to have anything to do with the Corrections Service psychologists. Most recently, the defendant reported to Dr Davis that he had had one session with a Corrections Services psychologist (as it was something “ordered under the ESO”) and also described participating in a recent court-appointed assessment.

82. [112]

    The defendant’s report of his time in prison was marked by significant difficulties that he had with Correctional Services staff and police, although he noted to Dr Davis that it was not all officers and that there were some “good officers”. Dr Ellis recorded that the defendant told him he “hates Corrective Services New South Wales with a passion” and “hates psychologists with a passion” and extends this sentiment to the police.

83. [113]

    Dr Davis was not convinced that any treatment would have an appreciable effect on the defendant’s underlying risk factors because of his reluctance to engage, but that if he was motivated, individual therapy was indicated to be the best option. Dr Davis stated that it should follow the tenets of the Denier’s program, and those providing it should be cognisant of his prominent narcissistic and paranoid personality features and tailor treatment sessions accordingly.

84. [114]

    There was no evidence of any institutional misconduct charges during his more recent prison sentence.

85. [115]

    The plaintiff notes that the defendant has been participating in therapy sessions with Forensic Psychology Services (FPS) while on the ISO, although it is contended that it is too early to say whether he is committed to them and/or has made treatment gains from the therapy.

86. [116]

    As at the date of the hearing, the defendant was complying with the conditions of his ISO. It is contended by the plaintiff that this is a relatively good indicator of the likelihood of complying with obligations of an ESO, despite some comments made by the defendant to the court-appointed experts that he would not comply.

87. [117]

    The defendant offended with further serious sex offending whilst on his suspended sentence imposed in 2002. He was released to parole from his second sex offence conviction in June 2009 and between that date and the charges laid in September 2012, Dr Davis noted that the defendant successfully resided in the community for four years without committing an offence. He was conditionally bailed in September 2012 until he was returned to custody on 13 August 2013.

88. [118]

    It was noted in one report during the 2009 parole that the defendant’s behaviour at the COSP was “belligerent” and his attempts at obtaining independent accommodation did not meet CSNSW requirements.

89. [119]

    The defendant has been subject to an ISO since 12 August 2022 and has been living at an Integration Support Centre since his release from custody. The defendant expressed his discontent to Dr Davis with being on an ISO, noting his good behaviour in prison, and his lack of offending in recent years. He also expressed discontent with being unable to play pool, go dirt-bike riding or busking with his guitar. However, he said to Dr Davis towards the end of the assessment “I know in myself I’m well centred… put my best foot forward and move on”. Dr Davis also recorded the defendant as stating “maybe under the ESO I’ll (learn to settle down)”.

90. [120]

    Mr Saad’s risk management report noted that the defendant was last supervised by Community Corrections in 2009 and that he completed his parole period successfully while residing at a CSNSW residential centre. However, reports revealed that the defendant was “belligerent through his four month period…and he complained that being housed there was similar to being in custody”.

91. [121]

    The defendant’s criminal history and pattern of offending behaviour has been canvassed above.

92. [122]

    The views of Norrish QC DCJ are set out above at [24(3)].

93. [123]

    The following material was referred to in the reports of both Dr Davis and Dr Ellis, however, I note more specifically the additional material in relation to the defendant’s alcohol use. In the exhibit marked BT-1 within Exhibit A (the affidavit of Mr Thomson sworn 24 February 2022), the following references were included:

    1. (1)

       In a case note report from the NSW Department of Corrective Services dated 1 April 2008, it is stated:

    2. (2)

       In a case note report from the NSW Department of Corrective Services dated 31 March 2009, it is stated:

    3. (3)

       In a case note report from the NSW Department of Corrective Services dated 6 July 2009 it is stated:

    4. (4)

       In a witness statement provided in 2004 in relation to the 2004 offending, the witness stated:

    5. (5)

       In a witness statement provided in 2001 in relation to the 2001 offending, the witness stated:

94. [124]

    Other additional material which I have taken into account is the victim impact statement which was read in Court on behalf of the victim and tendered as Ex H. This was a statement before the Sydney District Court in relation to the index offending. The grave consequences of the offending on the victim are cogently and powerfully expressed. Her words make vivid how serious this conduct would be for any future victim of serious sex offending. The defendant concedes that it is appropriate that I take it into account in assessing the gravity of the offending and in turn that it informs the question of unacceptable risk: State of New South Wales v Wilmot (Final) [2019] NSWSC 1276 per Lonergan J at [112]. I note what the victim says about the conditions she would prefer to be included in an ESO. I have given what I regard as appropriate weight to these views, noting that the issue of the appropriateness of conditions are issues for me to consider in light of a range of evidence, including expert evidence, including the court-appointed experts and others such as Ms Grabham. Ms Grabham is the High Risk Offender Applications and Operational Governance Officer.

The ESO should be made.

1. [125]

   I have already found that the matters in s 5B(a)-(c) are satisfied. [22]

2. [126]

   On the basis of the material referred to above, I am satisfied to a high degree of probability that unless supervised, the defendant poses an unacceptable risk of committing another serious sex offence, specifically a serious sex offence involving a female child. Further, having regard to the matters under s 9(3) referred to above, and treating the safety of the community as the paramount consideration pursuant to s 9(2), I am of the view that I should exercise my discretion to make an ESO.

3. [127]

   In coming to this state of satisfaction I note the following:

   1. (1)

      The court-appointed experts agree that the defendant poses at least a ‘moderate’/’below average to average’ risk of committing a sex offence. Other experts put the risk even higher. Whilst it is noted that both court-appointed experts acknowledged that the risk assessment tools are not geared towards assessing the risk of serious sex offending, but rather sex offending simpliciter, as also noted above, Dr Davis observed that more than two thirds of the relevant Australian sample were sexual offenders that had victimised children. Accordingly, he noted that the rates may not be too dissimilar as between recidivism for sex offenders and that for serious sex offenders, acknowledging that was “admittedly speculative”. I am satisfied that the statistical evidence, when combined with other indicators of general instability faced by the defendant, shows that without the supervision provided by an ESO, the defendant poses an unacceptable risk of committing a serious sexual offence against a female child.

   2. (2)

      Whilst there was some difference of emphasis between the court-appointed experts in determining whether the defendant is diagnosed as a paedophile, there was consensus between the experts that he has relevant dynamic risk factors in that he has been sexually aroused by pre-pubescent children over a period of years, and that his offending may also relate to or be motivated by anger, power and physiological arousal, as well as narcissism.

   3. (3)

      Dr Davis was of the view that the defendant’s risk would diminish with age, given he is over 60, and research indicates that in the absence of paraphilia, sexual recidivism for a person over 60 is uncommon. Dr Ellis was less optimistic about the effect of age, given he diagnosed the defendant with paedophilia, and given such a diagnosis, the otherwise dampening effect of age did not apply to the same extent. I have concluded that the weight of the evidence is that the defendant’s age, of itself, does not outweigh other important factors which indicate that the defendant requires the supervision provided by an ESO. I have taken into account factors including evidence of the defendant’s sexual arousal which is consistently identified as the most prominent risk factor for sexual reoffence; his personality disorder; poor employment and housing stability. I accept that these factors combine to moderate against him being typical of this age group of offenders.

   4. (4)

      The defendant’s lack of insight into his offending is coupled with a historical failure to undertake any treatment which may go towards mitigating his risk.

   5. (5)

      The defendant’s failure to date to engage with any program to assist him to avoid high risk situations, or even to understand what may amount to a high risk situation, means that the risk cannot be mitigated by avoiding high risk situations without supervision.

   6. (6)

      The defendant’s denial of offending does not increase his risk of re-offending in and of itself, but it has created a barrier to seeking appropriate treatment which may mitigate his risk.

   7. (7)

      The defendant’s diagnosed personality disorder, involving elements of narcissism and lack of empathy contributes to his risk of reoffending.

   8. (8)

      The defendant denies having an alcohol problem when the weight of the evidence would indicate he did have such a problem in the past, and it was linked to two of the three offence sequences. His failure to acknowledge such a problem means that without supervision, his risk of committing an offence whilst affected by alcohol is unable to be mitigated.

   9. (9)

      Whilst his most recent offending was in 2004, it can be noted that he continued to offend even after arrest and/or sanction. Whilst he did not offend when he was in the community for a period of approximately four years, the experts were unanimous in finding that such a period is was not long enough to provide an indication that he no longer poses an unacceptable risk, especially in light of his subsequent lengthy incarceration.

   10. (10)

       Importantly, as noted above, given the likely consequences of an offence are grave, an offender may pose an unacceptable risk even where the likelihood of committing another serious offence is low. Here the assessment of the risk is in the moderate range – it being assessed as either “moderate” or “below average to average” by the court-appointed experts. When combined with the dire likely consequences of an offence being committed, the risk is unacceptable.

4. [128]

   Accordingly, I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if not kept under supervision under an ESO.

5. [129]

   The threshold provisions of s 5B of the Act are therefore satisfied. Further, on the basis of the matters identified above, I am of the view that pursuant to s 9 of the Act, I should make an extended supervision order, subject to conditions.

Duration of the ESO

1. [130]

   The plaintiff seeks an ESO for a period of five years. Dr Davis was of the view that an ESO in the order of two to three years duration would, in his experience, provide sufficient scope to allow the defendant to indicate that he has stabilised and otherwise reduce the risk of re-offending. The age of the defendant was also relevant in coming to this opinion. Ultimately, Dr Ellis also agreed that an ESO of two to three years was a satisfactory minimum. In light of these opinions, and in light of the practical option that the plaintiff can apply for a further order if required, I am of the view that a period of three years is an appropriate length in all of the circumstances.

Appropriate conditions

1. [131]

   Section 11(1) of the Act provides that an extended supervision order may direct an offender to comply with such conditions as the Court considers appropriate and sets out a non-exhaustive list of potential conditions. Section 11(2) mandates the inclusion of a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services.

2. [132]

   In determining what is “appropriate”, it is accepted that the discretion is broad, but must be exercised having regard to the scope and purpose of the Act and its objects: Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65 at [47] (the Court) (“Wilde”). At [53] of Wilde, the Court further stated:

3. [133]

   The determination of appropriate conditions is a balancing exercise “in the sense that the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective”. [23] It is accepted that this step engages a balancing exercise involving possible intrusions on the offender’s liberty and privacy. [24] It must also be borne in mind that a failure by a person to comply with the requirements of an ESO is an offence pursuant to s 12 of the Act and is punishable by fine, imprisonment, or both.

4. [134]

   The conditions contended for by the plaintiff as appropriate for the ESO are largely the same as those imposed in relation to the ISO ordered by Chen J. Noting that the primary position of the defendant was that the ESO should not be imposed, the defendant does not oppose the making of many of the proposed conditions, in particular conditions 1, 2, 3, 4, 8, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 23, 24, 25, 27, 28, 29, 30, 33, 34, 35, 36, 38, 39 40, 42, 44, 45, 46, 47, 48, 50, 51, 52, 53, 55, 58. Based on the material I have considered (including the oral evidence from the Drs Davis and Ellis) and in accordance with the principles identified above, I am satisfied that those uncontested conditions are appropriate.

5. [135]

   Some of the proposed conditions are fully opposed, and some opposed in part or in relation to some of the detail of them. I am grateful for the sensible approach taken by the defendant to confine the argument to those conditions or parts of conditions which are in contention. I will deal with each of them in turn.

6. [136]

   The defendant opposed the making of the proposed conditions 5, 6 and 7 under the heading “Schedule of Movements”. I note that these conditions were part of the ISO. They read as follows:

7. [137]

   I also note that the experts were unanimous in their view that structure and planning would be important for the defendant in the mitigation of risk. I further note that a certain degree of flexibility was thought appropriate, given that too much rigidity would be too confining, and would arguably make it difficult to comply given the exigencies of life. It was suggested on behalf of the defendant that a less onerous form of scheduling known as “dry scheduling” may be appropriate, such as that imposed in State of New South Wales v Hackett (Final) [2022] NSWSC 885 (Davies J).

8. [138]

   However, having considered the appropriateness of the less onerous “dry scheduling” approach, I am of the view that at this point, the risk is not sufficiently mitigated by such an arrangement. Ms Grabham noted in her affidavit that “dry scheduling” is not at all useful for the electronic monitoring team as there can be no real time monitoring given the lack of any specificity of time and location, which is a feature of “dry scheduling”. I also note that the defendant has been able to comply with the current scheduling conditions on the ISO and has exhibited good judgment and communication skills when some aspect of his schedule went awry. Accordingly, I am not of the view that the defendant is being set up to fail, or that these conditions are unduly onerous at this stage. I am of the view that given the length of time the defendant has been out of custody, the unanimous views of the experts of the need for structure, the lack of efficacy of real time monitoring if there is only “dry scheduling”, and the defendant’s demonstrated capacity to date to cope with the relevant conditions imposed by the ISO, the proposed conditions of 5, 6 and 7 strike an appropriate balance and they should be imposed.

9. [139]

   The defendant opposed conditions 18, 32 and 49 proposed by the plaintiff. These conditions can be broadly described as requiring advance permission for the defendant to avail himself of adult sexual services or adult entertainment of one type or another. The proposed conditions read as follows:

10. [140]

    The court-appointed experts did not agree as to the appropriateness of the imposition of these conditions. It is noted that these proposed conditions do not prevent the defendant from engaging with the services, but that he must get permission in advance.

11. [141]

    Dr Davis was of the view that these conditions were not warranted, given the lack of any adult sexual offending, and indeed, such conditions may limit or hamper the defendant engaging with the potentially positive sexual outlet that these opportunities may provide. Dr Davis noted that the only monitoring which may be required in this regard would be monitoring the length of time which the defendant may be spending on such activities. In his view, this could be appropriately tracked by way of the general supervision process.

12. [142]

    Dr Ellis opined in his oral evidence that “there is no evidence that [the activities of the type contemplated in proposed conditions 18, 32 and 49] particularly increases or decreases risk”. He went on to say that his sexual expression should be monitored and that if it appeared that his use of these outlets was furthering “the objectification of others and furthering his risk then it could be detected and monitored for”.

13. [143]

    In light of the relevant risk in this case being a risk of the defendant committing another serious sex offence involving a female child, together with the lack of evidence indicating that engaging in the activities in question would increase the risk, I am of the view that it would not be appropriate to impose conditions 18, 32 and 49.

14. [144]

    The defendant opposed condition 9 although the basis for the objection was not fully developed. The proposed condition reads as follows:

15. [145]

    In any event, I am of the view that this accommodation condition is appropriate, and in doing so, I note that there is the potential for some flexibility if approved by the Departmental Supervising Officer.

16. [146]

    Condition 17 in the ISO reads as follows:

17. [147]

    The plaintiff contended that the words “or a National Park” should be deleted as they are not in the same category nor within the spirit of what is sought to be captured in condition 17(d). The defendant opposed the deletion of those words.

18. [148]

    I agree with the plaintiff’s submission. If “or a National Park” was to be included, it would also perhaps, on that logic, be appropriate to include “or a beach”. In my view, such a carve out (or carve outs) does not appropriately mitigate the risk involved. I am of the view that it is appropriate to delete the words “or a National Park” from condition 17, noting again that prior approval of a DSO can be sought

19. [149]

    Condition 22 was not part of the ISO, and its reinsertion is opposed by the defendant. It reads as follows:

20. [150]

    In the report of Ms Grabham, it is contended that:

21. [151]

    Dr Davis opined that he could not see why condition 22 would have any relationship to the defendant’s risk for sexual recidivism, and that “it may serve to increase his already pronounced paranoia regarding Corrective Services staff”.

22. [152]

    Dr Ellis stated relevantly that this condition together with approval and supervision of employment would allow for greater certainty that the defendant was engaged in legitimate activities.

23. [153]

    I am of the view (and I note as was Chen J) that the imposition of this condition is neither reasonable nor appropriate given the other conditions and the nature of the risk that has been identified. I decline to impose this condition.

24. [154]

    The defendant wanted condition 26 in the ISO to be deleted, which presently reads as follows:

25. [155]

    It is common ground that the defendant wishes to play pool, and that opportunities for that activity often occur in licensed premises. Dr Davis observed that anything “which may facilitate his playing pool will be advantageous”. It is also accepted by the experts that the defendant has had past problems with alcohol. I note that this proposed condition does not prevent the defendant from attending licensed premises, but rather that he simply requires the prior approval of a DSO. In circumstances where his scheduled activities are in any event to be determined in advance, I am of the view that this is an appropriate condition, as it may help to ensure that the licensed venues he plans on attending will be focussed on pursuing his recreational activities involving pool rather than alcohol focussed.

26. [156]

    Condition 31(a) was not part of the ISO, and its reinsertion (even as recast by the plaintiff) is opposed by the defendant.

27. [157]

    The original form of condition 31(a) sought by the plaintiff but not included in the ISO read as follows:

28. [158]

    The plaintiff proposes the subparagraph be inserted but altered as follows:

29. [159]

    I am of the view that condition 31(a) – in either form, should not be inserted. Condition 31 only including subparagraphs (b) and (c) (that is, in the same terms as was ordered in the ISO), is appropriate. When it is read with other conditions which provide restrictions around the defendant’s own alcohol consumption and requires prior approval for him to enter licensed premises, the supervision is sufficient.

30. [160]

    Condition 37 of the ISO reads as follows:

31. [161]

    The plaintiff proposed an alteration to condition 37 for the defendant to provide immediate notification of any new alias, electronic identity or login name used by him other than those he has previously disclosed such that the condition would read as follows:

32. [162]

    The defendant agreed that some temporal limitation should be added to condition 37 but proposed that the notification should be “as soon as practicable” rather than “immediately”, and submitted that the change proposed by the plaintiff would be too onerous given the defendant has no history of offending using the internet.

33. [163]

    I am of the view that the addition of the words “as soon as practicable” to be added to the wording of condition 37 as it is set out in the existing ISO is appropriate in the circumstances, taking into account the nature of the risk which has been identified.

34. [164]

    Condition 41 under the ISO currently reads as follows:

35. [165]

    The defendant proposed that it be amended to add an element of knowledge, such that the condition would read: “the defendant must not use any message application or service which he knows, or ought reasonably to know is coded, or encrypted”. I am of the view that, whilst superficially attractive, the wording as suggested by the defendant would be impossible to enforce. I am of the view that the current wording is appropriate.

36. [166]

    Condition 43 under the ISO currently reads as follows:

37. [167]

    The defendant proposes an additional sentence be added to that condition as follows:

38. [168]

    The plaintiff has raised the question of whether I would have power to make an order in such terms. I share the concern that the condition would seek to be directed at the conduct of the Departmental officers rather than that of the defendant. Accordingly, in my view, the addition of the words, even if within power (which I doubt) would not be appropriate. I decline to add the proposed words to condition 43.

39. [169]

    Conditions 54, 56 and 57 as they currently stand under the ISO read as follows:

40. [170]

    As I understood the position of the defendant, he originally opposed the making of the orders, but ended up accepting that perhaps more finely crafted conditions which were less likely to trigger unhelpful responses from the defendant may be acceptable.

41. [171]

    I agree that it would appear to be beneficial if the defendant were able to be subject to well-tailored treatment, on an individual basis, in the nature of the Denier’s program (a program which is only presently offered in a group setting, in custody, as I understand it.)

42. [172]

    It also appears to be necessary to be able to ensure there will be some sort of information sharing between treatment providers, if only for appropriate co-ordination, and risk mitigation. However, it would also appear tolerably clear that given the defendant’s prominent narcissistic and paranoid personality features, if there were to be no confidentiality attached to treatment, the defendant would be highly unlikely to engage with it. It would thus be self-defeating and would set up the defendant to fail.

43. [173]

    Accordingly, I propose to impose more confined conditions. In confining the Conditions 54, 56 and 57, I note that condition 33 already provides that the defendant must agree to a DSO disclosing his criminal history “to another person if the disclosure is reasonably necessary [etc] (emphasis added.)”.

44. [174]

    Accordingly, I propose the following wording of conditions 54, 56 and 57.

45. [175]

    Condition 54:

46. [176]

    Condition 56:

47. [177]

    Condition 57:

Orders

1. [178]

   The orders I therefore make are as follows:

   1. (1)

      Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), I order that the defendant be subject to an extended supervision order for a period of three years commencing on 10 November 2022.

   2. (2)

      Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), I direct that the defendant comply with the conditions set out in the Schedule annexed to this judgment for the period of the extended supervision order.